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OCCUPATIONALLY ACQUIRED
IMMUNO DEFICIENCY SYNDROME IN INDIA

Vijay Kanhere

http://www.amrc.org.hk/4701.htm

Acquired immuno deficiency syndrome (AIDS) has been in the news for years. Recently it was overshadowed by severe acute respiratory syndrome (SARS). In the case of SARS, the persons most at risk are health care workers. In the case of AIDS, health care workers are also at risk; workers in public hospitals are more at risk. These hospitals do not reject patients who contracted or who are suspected of contracting AIDS.

Ranjita Raje a 26 year-old nurse said, “AIDS was detected in my case accidentally, in a routine check up. I did not have any symptoms. My family, that is my in-laws, deserted me. They very well knew that I had not acquired the infection from extramarital sexual relations. My husband got checked. He was not affected. He trusted me, but social pressures were tough to resist.”

This happened in 2001 when municipal hospital authorities asked her to take unpaid leave. No cost of treatment was offered. She did not have any sympathy from her colleagues. She did not show any signs of weakness when we spoke at the union office, and was eager to go back to work. Her parents showed understanding, yet remaining at home without work or earnings become unbearable.

In 2002 she recovered from the psychological shock of contracting occupationally acquired immuno deficiency syndrome (OAIDS), a long absence from work, and being deserted by her in-laws. She approached the Municipal Nursing and Paramedical Staff Union for help.

Legally she cannot be dismissed from her job because of her illness. Hospital managers use this ploy of asking the AIDS patient to go on leave, without any written agreement. The affected person is often in bad shape and agrees. AIDS is so closely associated in peoples’ minds with extramarital relations that colleagues are not usually sympathetic. The affected person becomes demoralised and weak in all the senses and does not complete the formalities for taking leave and so on.

Secondly there is a limit up to which one can be away from work even with official leave. Thus a victim is away from the job and when it becomes an ‘unauthorised absence’ this is an acceptable reason for dismissal.

In 1999 I tried to speak to the co-workers of one such hospital employee at a private hospital in Mumbai. They responded that it was rational that they were not at risk because of him, but he may infect patients. I pointed out that it is possible to place him in a job where he cannot infect other patients. “It is so difficult to find such a position here; to be frank we do not feel like working with him”, was their response. The worker lost his health and his job.

The attitude of these colleagues was wrong, but I cannot fully blame them. In a workshop (in a posh hotel in Mumbai) on ‘Legal rights of AIDS affected persons’, I asked an eminent doctor anchoring a discussion, “What about occupationally acquired AIDS of health workers and their rights?” He answered, “Some young doctors visit sex workers, have unsafe sex, and then complain about occupationally acquired AIDS. These young chaps are just irresponsible and in health care work there is not much risk.” His answer was pathetic and demonstrated the level of ignorance among educated doctors, and even among doctors working with AIDS patients. Not to leave the discussion on such a note I asked my question again, “Doctor, what about surgeons, operation theatre workers, and health care workers involved with childbirth?” This time his response was milder; recognising the problem reluctantly he said, “Yes, there are some tasks where there is a risk, but if one is careful there is not much risk.”

 

This is a prevalent attitude: ‘There is a small risk, but if you are affected it is because of your carelessness.’ How can the above and similar misleading statements be repeated so often?

We are also partly responsible. We have not publicised the instances of infections through body fluids that have affected health care workers. Here are some examples.

In 2001 the departmental head of a surgical unit was infected with hepatitis B. The routes of infection of hepatitis B are the same as those of AIDS. He was in a position to record his infection as an occupationally acquired infection. He also earned special leave.

A barber working in a municipal hospital left his job and went to his native place after being identified as HIV positive. The possibility of hair carrying infections is very high, so barbers remove all hair near an area to be operated on. After increasing awareness about blood-borne pathogens causing AIDS, hepatitis B, and hepatitis C, new blades or razors are used for every patient. What about the worker? The barber is exposed to all sorts of patients and uses sharp instruments all the time. He is not given any protection worthy of the name. We suspect that the barber who left was infected through work, but we could not contact him as he broke all contact with his colleagues.

A sister (nurse) expired due to AIDS four years back. She also worked in a public hospital and her case of AIDS was most probably acquired at work. A female surgeon was similarly affected six years ago.

These are only some of the instances we came to know through activities with the Municipal Majdur Union (MMU) in Mumbai, and the Society for Participatory Research in Asia (PRIA) in New Delhi. As an Occupational Health and Safety Centre we have worked with the MMU and PRIA on occupational health and safety issues since 1988. Detailed research also did not show all instances of HIV/OAIDS as people hide HIV infections because of the stigma attached to it. Our research about ‘AIDS as an occupational hazard within the frame of occupational hazards of health care workers (1999)’ has indicated the possibilities of OAIDS in public hospitals in Mumbai. This aspect is revisted later in the article.

One area of our work has been the legal aspect of occupational diseases: is being detected HIV positive grounds to dismiss an employee? The answer is No. Being HIV positive is not enough reason for dismissal. If there are other disabling infections and a person becomes too weak to work, such a person can be dismissed. Under current Indian laws this can be done only after due process.

What about health care workers? They work in a sensitive area. Even so they cannot be dismissed without due process and being HIV positive is not sufficient reason. If there is a risk to patients, the affected person can be transferred to a job where patients and other workers are not at risk.

In the case of Ranjita that is the demand made by the Nursing and Paramedical Staff Union affiliated to the MMU. Initially management said that it would consider the demand, but in 2003 it was rejected.

Is Ranjita entitled to costs of treatment? Is she entitled to compensation?

Under Indian laws occupational diseases are considered as accidents. Injuries due to accidents and occupational diseases entitle victims to compensation.

An important point when handling diseases is the connection between work and disease. Many lawyers and unionists feel that in the case of occupational diseases the connection has to be proved by the claimant, the affected worker. The two most important laws in this connection are the Workmen’s Compensation Act and the Employees’ State Insurance (ESI) Act, which have special schedules for occupational diseases. The first item in these schedules is infectious diseases and the occupations listed are health care work, veterinary work, and work with animals.

The significance of these schedules is in similar language in both the laws. These laws state that if
I) the worker has worked for a specified period in the listed occupation,
II) the worker is in service at the time of the claim becoming due (when an occupational disease is detected),
III) the worker is suffering from a disease listed in the schedule; then unless the contrary is proved, connection between work and disease is presumed. In simple language this means the contrary claim has to be proved by the employer; if the employer cannot prove other cause of disease then connection with work is presumed.

Under criminal law if I claim a fact then it is my duty to prove it. This is also called the onus of proof or burden of proof. If I claim that my disease is due to work then under criminal law it is my duty to prove it. ‘Proof’ also has specific meaning; it means ‘any reasonable person should reach the same conclusion beyond any doubt as the claim’. Under the two above laws in the case of scheduled diseases and other conditions given above, the meaning of ‘proof’ is totally different.

Legal problem of health care workers

Information in the chart below appears in part A of the schedule of occupational diseases in the two laws on compensation:

Health care workers have a clear and accepted risk of contamination by HIV. The chart above indicates the intention of the legislation to include health care and laboratory workers.

The Workmen’s Compensation Act also has one more schedule listing occupations where this law applies. As it happens health care and laboratory work is not mentioned in the second schedule of this Act. We have not seen claims by health care workers. The intention of the legislation is very clear that the law is meant for health care workers as well. The union is trying to get health care work and all occupations listed in the schedule of occupational diseases to be automatically included in the list of occupations or the second schedule of this law. The limits of the present laws have to be tested by some union that actually files claims if not about OAIDS then at least about some disabling disease such as hepatitis B or tuberculosis.

Backache and repetitive stress injury (RSI) are not listed in schedules of the Workmen’s Compensation Act and the ESI Act. In these and other such cases the burden of proof is as under criminal law. It is less strict than the criminal law as these are beneficiary laws.

Secondly the amount of compensation is not high. From 1984 to 1995 for calculating the amount of compensation, monthly wages up to Rs 1,000 (US$23) was taken for calculation. Salaries above this level were neglected. This limit was increased to Rs 2000 (US$46) in 1995, and Rs 4000 (US$92) in 2000.

Problems of prevention due to the peculiar nature of work
There are accepted methods for avoiding occupational hazards. The first line of defence is to control the hazard by removing its source. Patients are the source of infections for health care workers, a source that cannot be removed or nullified. The second step is to try substitution, also not possible in the case of health care workers.

Some of the private hospitals in Mumbai reject patients who are HIV positive. Apart from this not being a foolproof method such rejection is unethical. The HIV blood test has a 45 day window. Even if one is infected, during the window period the tests will not show HIV infection. Thus negative results of tests are not a perfect indicator of absence of infection.

In cases of accidental injury, patients have to be treated quickly; medical staff and workers cannot wait for the results of blood tests. What remains is the last line of defence - personal protective equipment and administrative changes to reduce possibility of hazards.

This has resulted in the protocol of ‘Universal Precautions’. The universality is in presuming that every patient may be a carrier of blood-borne pathogens (viruses or bacteria) and taking care to avoid infection of health care workers.

Our research ‘AIDS as an occupational hazard within the frame of occupational hazards of health care workers (1999)’ with the help of the American Center for International Labor Solidarity, Sri Lanka and with PRIA and MMU showed exactly the absence of such precautions in municipal hospitals in Mumbai. The following is based on the above research report and a booklet in Marathi prepared by Ranjana Athavale for the health care workers.

Our research looked at the overall nature of precautions taken. We realised that we should not look at occupational HIV infections in isolation. We have to look at the work culture as such and then place the areas of risk and precautions needed to avoid occupational HIV infection.

The research indicated the results in the tables below.

Contact per week with patients’ blood without protective gear (total sample: 100 workers)

Contact per week with patients’ body fluids (except blood) without protective gear (total sample: 100 workers)

The possibility of infection by blood-borne pathogens such as HIV is created when there is a high rate of injury during work. Even pinpricks open ways for infection to travel.

Scratches or wounds per week without protective gear

With the reduction of public expenditure on health care, the already bad situation concerning protective gear (e.g. gloves) is becoming worse.

Gloves

Explanatory note: 77 persons get gloves always. Out of these 77 and the 18 who get them sometimes only 25 get them the right size, and 18 out of 100 complain of allergy to the material of gloves

One of the demands raised by employees is to increase the allocation for protective equipment in hospital budgets. A lot of money comes in for or about activities related with AIDS; OAIDS is neglected. There are costly conferences and workshops and international meetings. Some of the allocation to control AIDS has to be spent on equipment in public hospitals. The staffing levels are going down and the ratio of nurses to patients is becoming worse - increasing work loads and possibility of injuries.

One of the nurses working in an operating theatre said, “If we start recording pinprick injuries we will not be left with time for important work. Even wounds do not get recorded. One of my colleagues twisted her ankle falling on a slippery theatre floor and had to take sick leave. She insisted on recording her injury as an occupational injury and her right to get special paid leave for an occupational injury. The senior nurse tried to dissuade her and told her that she would regret her decision to record it as an occupational injury. She filled in the necessary forms (that are not easily available). Her forms kept on moving from table to table in the administration and then from one office of the municipal corporation to another. By the end of the financial year there was still a question about her three days leave due to twisting her ankle. It was not sanctioned for months. As a result her due travel leave also lapsed, as how much leave was due to her could not be precisely calculated due to the problem of her disputed three days leave.

All of us learned a lesson - ‘Never record occupational injuries. Do not ask for special leave for occupational injuries or health problems. Do not ask for rights or the management will teach you a lesson. We have already so many problems to deal with that the problem of infection through pinpricks is regarded as a minor problem which it is definitely not.’

Health unions and workers have to make immense efforts and also need to involve citizens for improvement in working conditions and services for patients. These health workers are providing tremendous services. On average in the KEM hospital of the municipal corporation in Mumbai alone, there are 70,000 inpatients and 1,161,573 outpatients receiving medical attention according to records of this hospital for the period April 2001 to March 2002. Every year these municipal hospitals cater to patients from all the states in India and complicated cases turn to hospitals such as KEM that have experts attached and medical colleges attached to most of them.

Not only working conditions but also facilities for patients are worsening due to arbitrary budget cuts and privatisation of health care.

Ranjita has not even become a statistic under OAIDS. She has not received any help with medical costs, an alternative job, or compensation. The situation and stigma is so much that even her real name had to be changed to Ranjita. Great efforts will be needed to persuade Ranjita, other nurses, health care workers, and doctors to stand up and talk openly about the problem of OAIDS and how to prevent it, and provide justice to the affected workers.

Vijay Kanhere is a researcher and consultant in environmental and occupational health and safety. He is a consultant to PRIA, New Delhi and a co-ordinator for the Occupational Health and Safety Centre (OHSC), Mumbai since 1988.

He is co-editor of books ‘Diagnosis of Occupational Diseases’, ‘Impairments and Disabilities and their Assessment’, and ‘Activists Handbook for OHS’.